Steven Gerber & John L. Washburn, Co-Chairs
International Criminal Courts Committee
The year 1997 was a watershed for the attempt
to establish a permanent International Criminal
Court to try individuals accused of committing
genocide, war crimes and crimes against
humanity. Fulfilling the mandate given to it by
the U.N. General Assembly in December 1996,
the Preparatory Committee to Establish an
International Criminal Court (PrepCom) met for
three two-week sessions in 1997 "to draft texts,
with a view to preparing a widely acceptable
consolidated text of a convention for an
international criminal court as a next step
towards consideration by a conference of
plenipotentiaries." G.A. Res. 51/207. The high
quality of the negotiations has made it seriously
possible that a treaty establishing the court
could come into force in this century.
The PrepCom created working groups to focus
on various parts of the draft statute. At the end
of each PrepCom session the working groups
would present their work to the plenary of the
PrepCom which would then decide if the text
was appropriate to forward to a diplomatic
conference. On some occasions, the working
groups were unable to finish debating their
issues or failed to reach consensus on draft
language for the diplomatic conference. When
no consensus could be reached on particular
language, that language was placed in
brackets. In these instances, more time was
assigned for the working group at a future
PrepCom session.
The following describes the working groups
and their areas of debate. There is one last
PrepCom from March 15 to April 3, 1998. The
diplomatic conference, where the treaty will,
hopefully, be finalized, is scheduled for June 15
- July 17, 1998 in Rome, Italy.
Working Group 1 -- Definition of Crimes.
In the February PrepCom, this working group
largely agreed upon the definition of genocide
and of crimes against humanity. Both definitions
have bracketed language where the delegates
could not agree. These definitions, with
brackets, will be included as text to be
submitted to the Diplomatic Conference in
1998.
The working group also debated text for the
definition of serious war crimes, often using the
proposals of the International Committee of the
Red Cross (ICRC) and of the United States as
model drafts.
The final outcome of the debate on war crimes
is a comprehensive document that includes
more options than the original text. It reflects
the view of many delegates that the original
working paper had failed to include certain vital
provisions. One issue on which there was near
unanimous agreement was to refer to the
crimes of rape, sexual slavery, enforced
prostitution, enforced pregnancy, enforced
sterilization and other forms of sexual violence
separately from the crime of committing
outrages upon personal dignity.
There are still several issues to be resolved in
the definition of war crimes. Must crimes meet
a jurisdictional threshold of being committed as
part of a plan or policy to be within the Court's
jurisdiction? Will certain provisions from the
1977 Protocol Additional 1 to the Geneva
Conventions of 12 August 1949 be included
such as the crimes of "unjustifiable delay in
repatriation of prisoners of war" and "the
launching of attacks against works or
installations containing dangerous forces
(materials) in the knowledge that such attack
will cause excessive loss of life"? Would the
Weapons Clause contain an exhaustive list of
illegal weapons (possibly containing nuclear
weapons and landmines) or a generic
statement prohibiting the use of weapons that
"are of a nature to cause superfluous injury or
unnecessary suffering or which are inherently
indiscriminate"? What will be the minimum age
for involvement in hostilities? What distinction,
if any, will there be between international
armed conflicts and non-international armed
conflicts?
Despite indications in the debate in 1996 that
aggression would not be likely to come under
the ICC's jurisdiction, during the February
PrepCom many of the States spoke in favor of
its inclusion. Germany's proposal on
aggression was particularly helpful because it
clarified that aggression as an act is
necessarily by a state (an army is necessary),
but that the planning, directing, and leading a
war of aggression is as much an individual act
as ordering the establishment of a
concentration camp. The working group
recommended the resulting text be
reconsidered by the PrepCom at a future time.
The working group made the same
recommendation for the crimes of terrorism,
drug trafficking, and attacks against U.N. and
associated personnel. Unfortunately, there was
even less consensus on these crimes than
there was on war crimes.
Working Group 2 -- General Principles of
Criminal Law.
This working group had the complicated task of
synthesizing principles of criminal law from
different legal systems, and is scheduled to
meet again in March 1998. The working group
recommended text on the following principles:
nullum crimen sine lege (no crimes without law),
non-retroactivity, individual criminal
responsibility (personal jurisdiction), irrelevance
of official position as a defense, individual
criminal responsibility, command responsibility,
mens rea (mental aspect of crime), actus reus
(physical aspect of crime), mistake of fact or of
law, age of responsibility, and statute of
limitations. Possible defenses were discussed
and consensus reached on the defenses of
insanity and involuntary intoxication. However,
work still remains on the definition of self-defense, duress, and sudden or extraordinary
events.
Working Group 3 -- Complementarity and
Trigger Mechanisms.
"Complementarity" is the idea that the ICC will
not supersede national courts, but rather
complement them. Although the concept of
complementarity runs throughout the proposed
Statute, it is principally applicable to article 35,
Issues of Admissibility. Surprisingly, the
working group succeeded in drafting an article
without brackets. Although several states
insisted on including a special note that
preserves other possible positions on article
35, an unbracketed complementarity article
that enjoys widespread support is a key
building block for other parts of the statute.
Article 35 lays out several grounds on which
the Court shall rule a case inadmissible: a
State is genuinely investigating or prosecuting
the case, unless the State is unwilling or
unable genuinely to carry out the investigation
or prosecution; the case was investigated by a
State which decided not to prosecute, unless
the decision resulted from the unwillingness or
inability of the state to genuinely prosecute; or
the case is not of sufficient gravity for the Court
to take further action. The article also provides
criteria for determining unwillingness and
inability of a state.
Working Group Three also dealt with trigger
mechanisms, specifically articles 21 through 25.
These articles, unfortunately, retain many
brackets. Several important decisions must be
made before many of these brackets can be
removed: Will the prosecutor be able to initiate
cases on his or her own initiative or will only
states party to the treaty and the U.N. Security
Council be allowed this power? Will states
accept the jurisdiction of the court by virtue of
their ratification of the treaty? Will there be a
complicated state consent regime required for
each case? Will the Security Council be able
to block cases arising from situations it is
dealing with under Chapter VII of the U.N.
Charter? There is a real possibility that some
of these issues may prevent the United States
from participating in the Court, at least initially.
Working Group 4 -- Procedural Matters.
The issues addressed were notification of the
indictment, trials in absentia, admissions of
guilt, investigations of alleged crimes, functions
and powers of the trial chamber,
commencement of prosecution, rights of the
accused, and protection of the accused, victims
and witnesses.
Unfortunately, progress was extremely slow
during the August session and those articles
that were discussed still contain either brackets
or alternative options. How to accommodate
the procedures and/or preferences of different
legal systems into one international court
remained a problem. Several delegations
proposed that the statute contain only general
principles of procedure. Detailed rules would
be written, at a later date, by the judges and
approved by the states. Many delegations
agreed with this proposal, but found it difficult
to close the debate.
Working Group 5 -- International Cooperation
and Judicial Assistance.
Working Group 5 addressed: the general
obligation of states to cooperate with the ICC,
requests for cooperation, grounds for refusal,
surrender or transfer of suspects, requests for
assistance, channels of communication for
transmitting requests, language of the request,
failure to cooperate, provisional arrest, other
forms of cooperation, and enforcement of
sentences. As a basis for its work, the
Working Group used an abbreviated
compilation from informal meetings outside the
PrepCom of governments and private experts.
Much text remains bracketed.
Working Group 6 -- Penalties.
The working group approved the text of several
provisions on penalties for inclusion in the draft
statute to be presented at the diplomatic
conference, but many still include bracketed
language. The issues addressed include:
imprisonment, fines, disqualification, forfeiture,
reparations, aggravating and mitigating
circumstances, prior detention, applicable
national legal standards, sentences of
imprisonment for multiple crimes, legal persons
and fines and assets collected by the Court.
Although a few states called for the death
penalty due to the horrendous nature of the
crimes involved, there was general agreement
that life imprisonment would be the maximum
sentence. There are two possible scenarios
involving prison facilities: the host state may
provide prison facilities or states party to the
treaty may volunteer to host convicted
individuals in their national prisons. There was
also a discussion regarding reparations for the
victims, but no consensus was reached on
how, or even whether, to deal with this issue.
The Prosecutor v. Slavko Dokmanovic:
Irregular Rendition and the Yugoslavia Tribunal1
Michael P. Scharf
In the summer of 1997, Kevin Curtis, a member
of the Office of the Prosecutor of the
Yugoslavia Tribunal, met with Slavko
Dokmanovic in Serbia to lure Dokmanovic into
Croatia, where he was arrested by U.N.
Peacekeeping personnel. Unknown to
Dokmanovic, he had been charged in a sealed
indictment with six counts of grave breaches of
the Geneva Conventions, violations of the laws
or customs of war and crimes against humanity
for his role in the greatest single massacre of
the 1991 war in Croatia, that of the execution of
261 people forcibly taken out of a hospital in
Vukovar, eastern Croatia.
Shortly after Dokmanovic was surrendered to
the Yugoslavia Tribunal, his counsel filed a
pretrial motion. He argued that the manner of
his arrest was illegal because it violated the
sovereignty of the FRY (Serbia and Montengro)
and international law. Trial Chamber II of the
ICTY (then composed of Gabrielle Kirk
McDonald of the United States, Elizabeth Odio
Benito of Costa Rica, and Saad Saood Jan of
Pakistan) rejected Dokmanovic's arguments,
concluding that "the means used to accomplish
the arrest of Mr. Dokmanovic neither violated
principles of international law nor the
sovereignty of the FRY."1 In doing so, the Trial
Chamber focused on the distinction between
"luring" and "forcible abduction," reckoning that
the former was acceptable while the latter
might constitute grounds for dismissal.
Dokmanovic's trial before Trial Chamber II,
consisting of Antonio Cassese (Italy), Richard
George May (U.K.), and Florence Ndepele
Mwachande Mumba (Zambia), began on 19
January 1998.
This casenote examines the validity of the
distinction the Trial Chamber drew between
abductions and luring. The basis for
Dokmanovic's challenge is the principle that
states and international organizations may
exercise police powers inside the territory of
another state only with the consent of the host
state. The unconsented exercise of such
powers constitutes an infringement of the
sovereignty and territorial integrity of the host
state in violation of the U.N. Charter and
customary international law. This principle
finds support in several decisions of the
International Court of Justice (ICJ), the
Restatement (Third) of the Foreign Relations
Law, a recent resolution adopted by the U.N.
Sixth (Legal) Committee, and a resolution
adopted by the Working Group on Arbitrary
Detention of the U.N. Commission on Human
Rights.
While recognizing that some unconsented law
enforcement activities (i.e., abductions) would
violate the principle of territorial integrity, the
Trial Chamber in the Dokmanovic case held that
luring does not do so. As the Trial Chamber
noted, "the Prosecution freely concedes that it
'used trickery, it was a ruse" and that "it was
the intention of the Prosecution from day one to
arrest Mr. Dokmanovic." However, the Trial
Chamber found "that such luring is consistent
with principles of international law and the
sovereignty of the FRY." In so finding, the Trial
Chamber stressed that "there was no actual
physical violation of FRY territory in gaining
custody of Mr. Dokmanovic."
As an extraterritorial law enforcement practice,
luring is much more common, and apparently
somewhat less objectionable, than abductions.
Unlike abduction by force, weapons are not
used to induce the suspect to go to the location
where the arrest will occur. Therefore, the risk
of injury or damage in the host state is
minimized. This does not mean, however, that
there was no physical violation of FRY territory
as the Trial Chamber concluded. The Trial
Chamber's conclusion would only have been
correct if the communications between law
enforcement officials and the target of the
luring were conducted exclusively over the
phone, radio, e-mail, or fax. In contrast, an
agent of the Office of the Prosecutor (Kevin
Curtis) did physically enter FRY territory for a
law enforcement purpose (the luring) without
the FRY's permission. Furthermore, while the
Trial Chamber found that Dokmanovic's
decision to leave the FRY and enter Croatia in
response to the OTP's deceit was voluntary, a
decision based on misrepresentation cannot
truly be characterized as a choice made by free
will.
There are numerous cases in which states
have protested luring as a violation of their
territorial integrity and international law. In
contrast to the Trial Chamber, most countries
do not distinguish between abduction by fraud
and abduction by force. In recognition of this
trend, in September of 1994, the XVth
Congress of the International Penal Law
Association adopted a resolution which stated:
"Abducting a person from a foreign country or
enticing a person under false pretenses to come
voluntarily from another country in order to
subject such a person to arrest and criminal
prosecution is contrary to public international
law and should not be tolerated and should be
recognized as a bar to prosecution."
Unfortunately, the Trial Chamber's decision on
the Motion for Release of the Accused, which
rests on an artificial distinction between luring
and abductions, may needlessly discourage
future apprehensions by NATO and U.N.
troops in the territory of the former Yugoslavia,
especially in the FRY and Croatia. Instead, the
Trial Chamber should have focussed on the
authorization of law enforcement activities by
the Security Council and the ICTY. There is no
violation of international law where the law
enforcement activities in question have been
so authorized, where the state has consented,
or where such activities are necessary under
the principle of self-defense.
The Dayton Peace Accords, Security Council
Resolutions 1031, and the subsequent
agreement of the Bosnian Government permit
NATO forces to lawfully exercise police powers
in Bosnia. Similarly, Security Council
Resolutions 1037, which with the consent of
Croatia and the FRY temporarily placed the
administration of Eastern Slavonia under
UNTAES, gave the U.N. peacekeeping force
the right to exercise police powers in that
region of Croatia. Consequently, there is no
violation of territorial integrity or the rights of
the accused where NATO or U.N. personnel
apprehend indicted war criminals in Bosnia or
the region of Eastern Slavonia, Croatia.
Similar activities within the FRY and other
regions of Croatia, however, are another
matter.
Yet, even without the consent of the FRY or
Croatia, the principle of territorial integrity is not
absolute. International law permits a state, for
instance, to enter another's territory in self-defense. Thus, a state may justifiably engage
in an unconsented abduction or luring
operation in another state against terrorists
which pose a continuing threat and which are
being given sanctuary in the latter state. To
the extent indicted war criminals located in the
FRY or Croatia constitute a threat to the NATO
or U.N. troops stationed in the territory of the
former Yugoslavia, there is justification for
abducting or luring them for purposes of arrest.
Moreover, under the U.N. Charter, a state may
enter another's territory when specifically
authorized by the Security Council pursuant to
its Chapter VII powers. Thus, the coalition
forces that invaded Iraq during the Gulf War
were acting in accordance with international
law. Several Security Council Resolutions may
be read together as authorizing the NATO
force to enter the FRY to apprehend persons
wanted by the ICTY.
1. An expanded version of this casenote will be published in
the upcoming issue of the Leiden Journal of International Law.
2. Prosecutor v. Slavko Dokmanovic, Decision on the Motion
for Release by the Accused Slavko Dokmanovic, No. IT-95-13a-PT, T. Ch. II, 22 October 1997. Bamidele A. Ojo, Professor of Politics &
International Studies, Fairleigh Dickinson
University.
Publication -- Human Rights and the New
World Order: Universality, Acceptability and
Human Diversity. Nova Science Publishers
(1997).
Current Research -- Humanitarian Law and the
New World Order: Precepts, Interpretations,
and Enforcement.
Sam Daws, University of Oxford.
Co-convener of the U.N. Working Group of the
British International Studies Association. He is
conducting a one-year audit of British research
resources on the United Nations.
Publications -- The Procedure of the United
Nations Security Council, Oxford University
Press (3rd. ed. 1997) (co-authored with the late
Sydney D. Bailey). Documents on Reform of
the United Nations, Dartmouth Publishing
(1997) (co-edited with Aul Taylor & Ute
Adamczick-Gerteis).
Marjoleine Zieck, University of Amsterdam,
Dept. of International Law.
Publication -- UNHCR and Voluntary
Repatriation of Refugees: A Legal Analysis,
Martinus Nyhoff Publishers (1997).
Michael Scharf
Interest Group Chair
Paul Williams
Interest Group Vice-Chair
Bryan MacPherson
Newsletter Editor
Neri Sybesma-Knol
Chair of the NGOs Committee
John Washburn and Steve Gerber
Co-Chairs of the International Criminal Courts
Committee
Greg Fox
Chair of the International Law Commission
Committee
Michael Schecter
Chair of the International Conferences Committee
Richard Thurston and Ingrid Persaud
Co-Chairs of the ICJ Committee
Recent Developments at the ICJ
Ingrid Persaud & Richard M.J. Thurston
Co-Chairs, ICJ Committee
Lockerbie Case: The eagerly awaited
judgment of the ICJ on preliminary objections
to its jurisdiction in the case concerning
Questions of Interpretation and Application of the
1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libya v. United Kingdom)
was handed down on 27 February 1998. The
Court found in favor of Libya on all questions
before it. The case arose out of the destruction
of Pan Am Flight 103 over Lockerbie in
Scotland. The Court had previously decided in
1992 that provisional measures under Article
41 of its Statute were not applicable.
The Court first concluded that the dispute could
not be resolved either by negotiation or by
arbitration as provided for in Article 14 of the
Montreal Convention. The ICJ noted that there
exists a difference of opinion as to the
interpretation and application of the Montreal
Convention that is right and proper for the
Court to decide. Furthermore, there are
specific disputes as to the interpretation and
application of two Articles of the Convention--
Article 7 (the obligation to extradite) and Article
11 (assistance with criminal proceedings). In
addition, it is for the Court to decide on any
questions of the lawfulness of the actions
criticized by Libya where it is at odds with the
Montreal Convention.
The U.K. had contended that even if the
Montreal Convention did confer the rights Libya
claimed, those rights were superseded by
Security Council Resolutions 748 (1992) and
883 (1993), and that by virtue of Articles 25
and 103 of the U.N. Charter, the Security
Council resolutions took precedence over the
Montreal Convention. The ICJ found that the
date the Application was filed (3 March 1992)
was crucial. Both resolutions were adopted
subsequent to this date and could not affect the
ICJ's jurisdiction once established.
The Court then considered the U.K.'s objection
that the case was inadmissible irrespective of
any rights Libya may have under the Montreal
Convention, as the matter is regulated by
Chapter VII of the U.N. Charter. The Court
again emphasized the crucial date of filing of
the Application and further noted that Security
Council resolution 748 was a mere
recommendation without binding effect.
The U.K. also maintained that Security Council
resolutions had effectively "rendered the
Libyan claims without object." The Rules of the
Court, the U.K. argued, allow the Court not to
proceed to judgment on the merits where any
such objection of a preliminary nature is found
(Article 79). Libya argued that the objection of
the U.K. properly fell within one of the
exceptions to the rule, viz., that the objection
was not of a preliminary nature. The Court, by
ten votes to six, found that to accept the U.K.'s
argument would not merely affect Libya's rights
on the merits but would itself constitute a
decision on the subject matter of merits.
Indeed, the U.K. had admitted that the
objection raised and the merits of the case
were "closely interconnected".
It is clear that there is tension in the Court with
regard to its judicial review role in relation to
the Security Council. Judges Koojimans and
Rezek in their separate opinions found that the
ICJ had a proper role regardless of the
decisions of the Security Council. Judges
Guillaume and Fleischhauer, in a joint
declaration, found this decision to be counter to
the aim of Article 79 of the Court's rules.
Judge Schwebel, who voted against all of the
Court's findings, provided a strong argument
against a judicial review role for the ICJ, finding
that the U.N. Charter in Article 103 clearly
superseded any rights under the Montreal
Convention and noting the Court's consistent
refusal to exercise a power of judicial review, a
power, he asserted, that the Court now
appears to be forging for itself.
Other Recent Developments: In the latest round
of the continuing legal dispute between Bosnia
and Herzegovina and Yugoslavia (Proceedings
instituted on 20 March 1993), the President of
the ICJ, Judge Schwebel, issued an order on
22 January 1998 extending the time-limits for
the filing of pleadings in the case concerning
Application of the Convention on the Prevention
and Punishment of the Crime of Genocide. The
pleadings were requested by Court in its order
of 17 December 1997 on the Yugoslavian
counter-claim of Bosnia and Herzegovina's
responsibility for acts of genocide committed
against Serbs in Bosnia and Herzegovina and
its request to the Court that Bosnia and
Herzegovina be bound to take necessary
measures so that such acts not be repeated.
Judge Schwebel extended to 23 April 1998 the
time-limit for the filing of the Reply of Bosnia
and Herzegovina and to 22 January 1999 the
time-limit for the filing of the Rejoinder of
Yugoslavia. Given the intense political
undertone of this dispute, the Court is likely to
be dealing with it for a long time to come.
On 11 March 1998, public hearings in the
present phase (Nigeria's preliminary objection
to the Court's jurisdiction) of the case
concerning Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria)
were concluded, permitting the judges to start
their deliberations. Pursuant to Article 79 of its
Rules, the Court has to decide on Nigeria's
preliminary objection prior to proceeding to the
merits of the case. This dispute arises out a
question of sovereignty over two areas, the
Bakassi Peninsula in the Gulf of Guinea and
over a part of Lake Chad. However, Cameroon
has asked the Court to engage in a far more
geographically significant decision process,
namely, specifying definitively the frontier
between itself and Nigeria from Lake Chad to
the Atlantic Ocean. Depending on the Court's
response to Cameroon's request, this case
could evoke issues similar to those included in
The Indo-Pakistan Western
Boundary (Rann of Kutch) Case (India v. Pakistan)
of 1968 and/or in the more recent 1994 case
concerning The Territorial Dispute (Libyan Arab
Jamahiriya v. Chad) [See 33 I.L.M. 571 (1994)].
On 27 February 1998, the Court fixed a time-limit of 27 November 1998 for the filing of
further written pleadings in the case concerning
Kasikili/Sedudu Island (Botswana/Namibia). In
an agreement reached on 15 February 1995,
the Parties asked the Court to determine, on
the basis of the Anglo-German Treaty of 1 July
1890 and the rules and principles of
international law, the boundary between
Namibia and Botswana around Kasikili/Sedudu
Island and the legal status of the island. This
observer (Thurston) wonders if this case will
evolve along lines similar to those of the 1962
case of Temple of Preah Vihear (Thailand v.
Cambodia).
Michael P. Scharf
Of all the issues raised during the visit of
China's President, Jiang Zemin, to the United
States in November 1997, none is as
potentially explosive and far reaching as the
issue of Taiwan.
An island about twice the size of the state of
Massachusetts, Taiwan has its own
democratically elected government and free
enterprise-based economy, which is the
twenty-first largest in the world. Its population
of 21.5 million is greater than that of Australia
or Venezuela, and it is the world's fourteenth
largest trading nation. And yet, the
government of Mainland China (the PRC),
which views Taiwan as a renegade province,
has blocked Taiwan from joining international
organizations and from conducting official
diplomatic relations with most of the nations of
the world.
With Hong Kong now under Chinese rule, the
PRC has begun to press Taiwan to accept a
similar one-country, two-system formula for
reunification. But, according to opinion polls,
the people of Taiwan prefer independence to
reunification by 43 percent to 34 percent. [And
last week, the Democratic Progressive Party,
which advocates Taiwan's independence,
swept local elections on the Island]. China, in
turn, has made clear that it would use force if
Taiwan were to make a formal declaration of its
independence from China. As the American
show of force in the Taiwan Strait last year
demonstrated, a Chinese attack on Taiwan
could quickly escalate into a war between
China and the United States. Thus, Taiwan is
considered one of the world's foremost
potential nuclear flashpoints.
On the occasion of Jiang Zemin's visit, the
collective wisdom of internationally recognized
experts on this topic can provide the basis for a
new perspective on how it might be resolved.
A group of these experts gathered in October
to consider the Taiwan/China issue at a
conference co-sponsored by the ASIL
International Organizations Interest Group, the
Public International Law & Policy Group, and
the Center for International Law and Policy at
New England School of Law. Among the
conference participants were two former U.S.
Ambassadors, a former Special Assistant to
President Bush, three former State Department
lawyers, a high level official from Taiwan, an
unofficial representative of the PRC, and a
dozen of the leading academicians in the field.
What emerged from this conference was a
possible framework which could simultaneously
meet the needs and aspirations of both Taiwan
and China. This new approach involves
neither incorporation of Taiwan into the PRC
nor the challenging step of a declaration of
independence as a Republic of Taiwan.
The key to the new approach is recognizing
that the concepts of sovereignty and
independence have changed radically in the
last few years as the United Nations has
admitted several new members which do not
meet the traditional criteria of independent
statehood. For example, Liechtenstein and
Monaco were recently admitted into the United
Nations despite the fact that they had ceded
their foreign affairs powers to Switzerland and
France, respectively. Similarly, Micronesia, the
Marshal Islands, and Palau have become
members of the United Nations despite
relinquishing much of their national security
powers to the United States in a "Compact of
Free Association." The United Nations
admitted these three islands as new members,
while specifically recognizing that their status
was "legally distinguishable from
independence."
Thus, at the same time Taiwan has been
moving toward de facto (though not de jure)
"independence," the world has been moving
toward a far less rigid understanding of the
meaning of the term. Building upon these
developments, a framework for resolving the
China/Taiwan issue could encompass the
following elements:
establishment of a loose power-sharing
arrangement between China and Taiwan
(along the lines of a compact of free
association), which does not erode Taiwan's
autonomy, but which relieves China's security
concerns.
continuation of Taiwan's international
relations through quasi-official diplomatic
means.
admission of Taiwan into the United Nations,
the World Trade Organization, and other
international
organizations without a formal declaration of
independence by Taiwan.
Putting a new spin on the "if it looks like a duck
..." analogy, one of the conference participants
succinctly summed up the proposed solution as
follows: "The key is for Taiwan to look like a
state, act like a state, carry on diplomacy like a
state, join international organizations like a
state, but not to formally declare its
independence, lest it become a target of the
PRC's hunting season."
It is most unfortunate that during Jiang Zemin's
visit, the White House reportedly did not see fit
to engage the Chinese leader vigorously on the
issue of Taiwan. This was a missed
opportunity, for it is in the United States
interests to play an active role in the resolution
of the China/Taiwan situation. A resolution of
the situation based on the above framework
would promote democracy, human rights, and
international trade on both sides of the Taiwan
Strait. More importantly, it would help ensure
that the United States is not drawn into a
military conflict in the region.
Note:
* This Op/Ed Piece was originally published with minor
variations in the Christian Science Monitor (Dec. 3, 1997). This newsletter's success depends upon material being submitted by our membership. We encourage submission of any
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